International marriage in Korea, part III: cross-border issues

Published : 2014-04-29 20:29
Updated : 2014-04-29 20:29

This is the third in a three-part series about international marriage and divorce in Korea.

Since we have assumed we are talking about a marriage between people of different nationalities, we should mention the international enforcement of family law issues. This is arguably the most complex area because it involves at least three bodies of law ― two states and the ubiquitous, and different, “international law.”

I can illustrate this with a case: A Korean spouse K, rather well off, sends his Australian spouse A and children abroad to Canada. A files for divorce in Canada, seeking support and custody of the children before moving back to Australia.

Treaties regarding spousal support and child custody have been entered into by many nations and therefore, the scope of and enforceability of court orders in Canada or Australia is then affected by the law of the other relevant nations (add at least Korea) and “international law,” such as treaties and other international legal rules.

So when the court in Korea considers a support order in which K has to pay A, it must consider the validity of the Canadian court’s decision under Canadian Law, the applicability of Australian law, any treaties between the countries, and Korean law.

Similarly, if K were to pursue custody or visitation ― or even child abduction ― claims against A (free advice: don’t just move the kids internationally without counsel), the Australian court would consider Australian law, international child abduction treaties and possibly Korean or Canadian law as well.

These issues don’t just touch the wealthy. International recognition of divorce is vital for anyone who desires to be married again. “Polygamist” just isn’t something you proudly put on a license plate ― at least not in many jurisdictions.

A cautionary example, as promised in the first column: Y married B in Korea. They loved, they divorced. Sorry to be a downer, but it’s the statistically more significant outcome.

When Y tried to get his divorce recognized in his home country, his translator translated “the marriage is terminated” (on the divorce decree) as “the marriage will be terminated.”

Perhaps you can see the problem. Some skeptical foreign official, in a robe and perhaps wig, asked simply, “When?” Because “will be” and “is” are not the same tense, and the former is not particularly useful when trying to establish a past event.

The recognition of divorce was ended there, and Y could not marry again until he paid more money to get the papers translated right and provide an explanation of the inconsistency.

Speaking of paying to get things done, we would like to conclude with a discussion of what fees you can reasonably expect in Korea to handle a divorce and whether it’s worth it or not. But note that if you are handling a case in two different countries, you will need at least two attorneys and the costs will increase.

Most bilingual attorneys do not work for people; they work for corporations, which can afford $200-$600 (or more) per hour. Should you find a Korean attorney that can actually talk to you in English and is willing to cap their fee at a flat rate that is less than a recent car, you’re probably doing fairly well.

Assuming that you pay 5 million won ($4,800) and have an apartment to split ― which would be worth at least 100 million won, and probably much more ― you are paying a very small fee to ensure that the split is done correctly. Think about the value of several years of support and the dividing of personal property and accounts in addition to that and it becomes clear that it’s a small investment to avoid a big headache.

I remember the first year after graduation when I was broke and tried to save money by not going to the dentist. When I did go, I had to have much more work done, and it cost more. Legal health is the same as physical health. Prevention over cure, and pennies upfront over dollars on the back end.

By Yuna Lee and Darren Bean

Yuna Lee is a Korean attorney at Seowoo & Minyul Law Firm in Seoul. You can read her blog at askakoreanlawyer.blogspot.com or if there is a legal issue you would like to be addressed, email askalawyer@naver.com. ― Ed.

Disclaimer: This column is not intended as legal advice. No action should be taken or avoided based on this column, no attorney-client relationship is formed by reading this column or contacting the authors, and the authors expressly disclaim any liability for the content of this column. Those with legal problems in Korea should seek advice from an attorney.